Sometimes Constitutions are Made in the Streets: the Future of the Charter’s Notwithstanding Clause

John D. Whyte

Abstract

This article examines the future of section 33 of the Charter of Rights and Freedoms (the notwithstanding clause)1 — specifically, its po- litical future. It explores whether it is a consti- tutional instrument which is likely to be used in the future by legislatures or by Parliament.2 The article is premised on the idea that popular po- litical notions about political and constitutional legitimacy, while often formed by the constitu- tional text, sometimes evolve independently of the text. When this happens, these new concep- tions of legitimacy will constrain the exercise of constitutional powers no matter how clearly the powers are conferred by the text. From this per- spective, this article argues that in an apparent regime of entrenched rights, such as Canada’s, the legislative suspension of rights will be re- garded as less reflective of the constituted order — and, hence, less legitimate — than will hav- ing legislatures insist that their choices should prevail over constitutional rights in some cir- cumstances.